Oregon: A Smart Growth Slap-Down?

Measure 37’s passage means lots of lawsuits, and little else

December 14, 2004 | Great Lakes Bulletin News Service

Urban growth boundaries protect much of Oregon’s countryside from sprawling development and help its cities, including Portland, prosper.

By almost any measure, Oregon's 30-year experience with carefully planning and managing change in its cities, towns, farmland, and natural assets has been a resounding success.

The state's major city, Portland, is among the nation's most livable, lacking the blight of so many central cities while offering a broad array of vibrant urban and suburban neighborhoods. Just outside Portland's metropolitan boundary (it actually has one) lies a well-protected landscape of majestic evergreen forests and working farms with some of the most fertile soils in North America. Whether nestled in the Cascade foothills, the high desert or along the publicly accessible, awe-inspiring coast, Oregon's towns and cities are cohesive and unique, rather than mere zip-code blips in a sea of undifferentiated sprawl. The outcome is so successful in part because the process is smart: Citizens of all stripes have a say in making the plans everyone will live by.

For these reasons, many have touted Oregon as a leader in applying Smart Growth principles to economic development. So when people around the country hear that Oregonians just voted to chuck it all with an anti-planning ballot measure, they have to wonder what that means for their own efforts to promote good planning that preserves communities and the environment.

The short answer, in my view: not much. First, Oregon's unique situation has been misinterpreted by some commentators, which I'll explain in a moment. And second, many other votes throughout the West and across the country provided abundant evidence that, more than ever, citizens want an active role in shaping their communities and protecting precious landscapes.

A Brilliant SubterfugeIn Oregon, nothing on the ballot repealed planning or environmental laws; in truth, every past measure expressly aimed at doing so has failed. There was no referendum in which voters chose "sprawl" over "smart growth." Oregonians didn't even vote to eliminate the vaunted urban growth boundaries around their metro areas.

What 60 percent of voters did was to approve Measure 37, whose brilliantly worded ballot title read: "Governments must pay owners, or forgo enforcement, when certain land-use restrictions reduce property value." It certainly sounds fair; in fact, the wonder is that passage wasn't more lopsided.

Amazingly, though, 40 percent of the voters saw through the wording and realized that the corporate land speculators and anti-planning activists who sponsored the measure had something up their sleeve. That something was this: The law is retroactive to 30 years ago, meaning that it suddenly throws into doubt three decades' worth of neighborhood zoning maps, community plans and environmental protections.

Now anyone — whether farmer, timber company or homeowner — who owned land before a zoning or environmental rule went into effect can claim the change reduced their property's speculative value and demand the government pay them (at today's land values!) or waive the land use restriction.

What this means, says Robert Liberty, the former executive director of the pro-planning group 1,000 Friends of Oregon, is that "if you're a timber company in a forest conservation zone that goes in and wants to sell lots for development, you can go ahead and do so."

In essence, he said, "A property owner can take a cocktail napkin, say I own this much land and it's worth this much and mail the napkin into the county and say here's what you owe me. The county can protest, but the property owner can say, 'See you in court.' "

A Lawyers’ Field DayIndeed, a profusion of court dates is about the only certainty emerging from this provision, which took effect Dec. 2. Already, at least three waves of lawsuits are expected. The first will come as landowners challenge the processes and fees that local governments set up for handling claims. The second will come when many of those landowners sue local governments or the state because they are denied waivers or paid less than they wanted. And the third will come when neighbors challenge the resulting development of septic-tank subdivisions, strip malls, and warehouses next to their homes.

It's likely to be a big, costly mess, but does Measure 37 spell the end of Smart Gowth in Oregon, or anywhere else, for that matter? I doubt it.

First off, it's very hard to read this as a vote of no confidence in the land-planning system. In fact, focus groups and polls indicated that few people readily understood the connection, a reality that cost the opposition dearly. Some have cast the vote as a rural backlash against urban-based environmentalists, but the fair-sounding language had appeal in both rural and urban areas. In Portland's Multnomah County, voters not only passed Measure 37 but also sent a strong pro-planning message by replacing an incumbent on Metro, the nation's only elected metro-wide council, with Robert Liberty, who ran on his long support for Smart Growth principles.

Indeed, opinion research and other voting results indicate that Oregonians desire passionately to keep their state clean, green, and well planned. But the Measure 37 vote shows that they want their system to be as fair to individual property owners as it can be. Those values are in no way mutually exclusive, and both are enormously important. That's why it's so disappointing to see a ballot measure designed in the guise of doing one while intentionally undermining the other.

November’s Smart Growth LandslideBecause citizens everywhere share many of the same sentiments, the Oregon vote does have a number of implications for other states. But we shouldn't let the confusion in Oregon obscure the larger national story.

Take a look at metro Denver, for example, where voters approved a $4.7 billion investment in the FasTracks proposal, a plan to accommodate future growth along 119 miles of light rail, commuter rail, and other public transit. It's the most ambitious transit plan since Washington's Metro system, but this one doesn't rely on the federal government. And it received strong support in places like Douglas County, a fast-growing suburb that went heavily for Bush but joined the rest of the region in passing FasTracks.

Although Denver had the most ambitious plan, it was far from alone as a growing number of cities sought to bootstrap their way into a less-sprawling future. Nationally, 80 percent of the 30-plus transit-funding measures passed this year, for a total of more than $40 billion. At the same time, voters in 111 communities in 25 states passed ballot measures to invest $2.4 billion in protecting land for parks and open space, for a success rate of 76 percent, according to the Trust for Public Land. In states like Montana, Utah and Colorado — usually seen as ripe territory for property rights messages — candidates won on Smart Growth values of thoughtful planning, expanding transportation options, revitalization, redevelopment, and the like.

Property Rights, Property ValuesGiven the success in Oregon, the small but well-funded alliance of anti-regulation ideologues, corporate land speculators, and sprawl-dependent industries will try to head off such gains by trying similar wolf-in-sheep's clothing tactics in other states.

Because no other state has the comprehensive, statewide planning that Oregon has, similar measures are likely to have a more narrow impact than Measure 37.

That said, however, it would be in the interests of both sides to have an open dialogue and reach some accommodation on how to give citizens what they most want: A way to plan for the future, protect the environment, and create great places to live that, in essence, reconciles individual property rights with community property values.

Smart Growth in many ways is a "property values" movement. It is all about taking care that our communities are well designed so that they hold their value and improve with age; making sure that new growth doesn't come at the expense of existing communities; and directing investment and energy toward revitalizing and restoring value to blighted and abandoned neighborhoods.

Are community-wide property values in conflict with individual property rights? Sometimes. As Richard J. Lazarus, a professor of environmental law at Georgetown University, told the New York Times recently: "If you can build a little Houston anywhere, or a gravel pit or a shopping center next to your home, you don't have maximization of property values." In the case of Measure 37, he said, "If you fail to regulate now, you're reducing property values for future Oregonians."

Fair QuestionsBut no one wants regulation for its own sake. In fact, misdirected over-regulation often thwarts Smart Growth. Across the country in the last few years we've seen large and growing markets for a wider variety of neighborhoods, with various mixes of housing types and nearby shopping opportunities. Yet a rigid, one-size-fits-all zoning code often means a long, costly process to get innovative, market-responsive developments done.

To the extent that "property rights" measures scale back counterproductive regulations and address real inequities, they deserve to be successful. Governments must be scrupulously fair to individual property owners in their use of condemnation and zoning.

But property rights advocates must take care not to deceive people into voting against their other, powerful interest in planning and investing in a better future for their communities, lest they provoke a backlash of their own.

And in all this talk of fairness, we mustn't forget the obligation of this generation to be fair to those who come after: Will we give them more or fewer opportunities to earn a living off productive land? Improving or declining cities and towns? A legacy worth inheriting, or a suffocating burden of economic and environmental debt?

It's this last set of questions that most troubles Oregonians such as Mr. Liberty. "We wanted to make the distinction between town and country clear and strong, not just for our era but for our children and grandchildren," he said. "We wanted livable cities and a working countryside. I think Oregonians still want that, but we can only have it if everyone believes the system is fair."

David Goldberg, a veteran urban affairs journalist, is the communications director for Smart Growth America, a national coalition of nonprofit organizations. Contact him at dgoldberg@smartgrowthamerica.org. A version of this article first appeared in The Sacramento Bee on Dec 12, 2004.